Excerpt:administrator - administrator not so described, sale by--sale by administrators not qua administrators, but as heirs--government securities. - .....no. 4), and two sons, surja coomar and haro coomar (defendants 1 and 2), and a grandson, hurish chunder (defendant no. 3), by a pre-deceased son. it appears on the evidence that jugomohun was possessed of certain immoveable properties, and after his death the two-third share of his two sons, the defendant 1 and 2, in most of, if not in all, the properties, including the dwelling-house, was sold away at auction for their debts. the evidence further shows that the defendant no. 3 separated in mess from the defendants 1 and 2 in 1881, and subsequently the latter came to a similar separation between themselves in 1884. no partition of the properties, however, seems to have then taken place between these parties, but in a conveyance executed jointly by the widow saroda sundari, her.....

Judgment:

W. Comer Petheram, Kt., C.J. and Ghose, J.

1. This was a suit by one Preonath Karar for declaration of right to a moiety share of certain Government promissory notes of the value of Rs. 7,400. They belonged originally to Nilmadhub Gossain, and devolved on his death upon his mother, Kudumbini, under the law of inheritance; and on the death of the latter, one Jugomohun Gossain became entitled to them as the next reversionary heir. Jugomohun left a widow, Saroda Sundari (defendant No. 4), and two sons, Surja Coomar and Haro Coomar (defendants 1 and 2), and a grandson, Hurish Chunder (defendant No. 3), by a pre-deceased son. It appears on the evidence that Jugomohun was possessed of certain immoveable properties, and after his death the two-third share of his two sons, the defendant 1 and 2, in most of, if not in all, the properties, including the dwelling-house, was sold away at auction for their debts. The evidence further shows that the defendant No. 3 separated in mess from the defendants 1 and 2 in 1881, and subsequently the latter came to a similar separation between themselves in 1884. No partition of the properties, however, seems to have then taken place between these parties, but in a conveyance executed jointly by the widow Saroda Sundari, her two sons, and Hurish Chunder, her grandson, dated 26th September 1885, in respect of a certain property, in which the interest of the two sons had been sold and purchased by one Kedar Nath Lahiri, the right of Saroda Sundari 'as the mother of many sons' to hold for her life a 4-anna share of 'the estate' left by Jugomohun was admitted by the sons, as also by the grandson, then represented by his mother, Shureshury Dabee. And subsequently, in October 1885, there was an actual partition by metes and bounds between the widow, Hurish Chunder, and one Indranarain, who had purchased the interest of the two sons in respect to the dwelling-house.

2. Nothing in particular seems to have been then said as regards the Government promissory notes. They stood in the name of Kudumbini, and had been lost during her lifetime. After the death of Jugomohun, Surja Coomar and Haro Coomar alone applied to the Public Debt Office, for issue of duplicates. It is admitted by the plaintiff in the plaint, and it may also be gathered from the evidence, that these two persons obtained letters of administration in respect of the promissory notes; and the Public Debt Office on the authority of the said letters registered the names of Surja Coomar and Haro Coomar as the payees, and subsequently that of one Uma Churn Ghose, who in November 1885 obtained a conveyance from those two individuals, of the notes; but before the duplicates could be issued, it was brought to the notice of the Comptroller-General of Accounts that there was another person, Hurish Chunder, who was entitled to an interest in the said notes. This person, however, subsequently (28th September 1886) wrote a letter to the Comptroller-General, disclaiming all interest, and acquiescing in the duplicates being issued to Uma Churn; and it is proved on the evidence that this was done in consideration of Rs. 375, which Uma Churn paid to him, Hurish Chunder. We may therefore take it that there was a transfer by both the sons and grandson to Uma Churn.

3. On the 21st September 1887 Mr. Braunfeld, as representing Messrs. Speed and Company, entered into a contract with Uma Churn for the purpose of these promissory notes, and paid Rs. 800 as part consideration; but before a conveyance could be executed the plaintiff Preonath obtained in the first instance a bill of sale (5th October 1887) from Hurish Chunder of a third share of the notes, and in the second place from Saroda Sundari (20th October 1887) of a 2 annas 13 gundahs share in these notes, she representing herself to be the owner of a 4-anna share as the widow of Jugomohun Gossain, and relinquishing to him (the plaintiff) the share of 1 anna 8 gundahs and odd already sold by Hurish in excess of his legitimate share. The plaintiff, on the 23rd October 1887, gave notice of his purchase to Mr. Braunfeld, who, however, on the 12th January 1888 completed his purchase by obtaining from Uma Churn a regular conveyance on payment of the balance of the consideration money that had been agreed upon.

4. The plaintiff subsequently applied to the Comptroller-General to have his name registered as payee in respect of a moiety share, but that officer said that this could not be done unless he, the plaintiff, established his right in the Civil Court. Thereupon the plaintiff brought the present suit.

5. The Subordinate Judge has dismissed the suit. He is of opinion that by reason of the separation between the sons and grandson of Jugomohun, the partition of the dwelling-house between Hurish Chunder, Indranarain (purchaser) and the widow, and recognition of her share in the estate of Jugomohun by the purchaser, Kedar Nath Lahiri, under the transaction of the 26th September 1885, she must be taken to be entitled to a share, and which is one-fourth, in the promissory notes, as part of that estate; and that therefore, the plaintiff has acquired a valid right by his purchase from that lady; but that notwithstanding this, he, the plaintiff, could not succeed as against the defendant No. 7, Mr. Braunfeld, because the property in the promissory notes passed to the latter on the 21st September 1887; that he purchased in good faith for a valuable consideration from the assignee of the defendants 1 and 2, who were the only persons that had obtained letters of administration, and that the only other person who was known to have any interest as an heir of Jugomohun, viz., Hurish Chunder, had put in a disclaimer in the office of the Comptroller-General of Accounts.

6. Against this decree the plaintiff has appealed to this Court.

7. The first question that we have been called upon to decide in this appeal is whether Saroda Sundari had any interest in the promissory notes, such as she could pass under a conveyance to the plaintiff.

8. The rights of a Hindu widow having several sons, such as Saroda Sundari is, have been considered in Sheo Dyal Tewaree v. Judoonath Tewaree 9 W.R. 61 Kedar Nath Coondoo Chowdhry v. Hemangini Dassi I.L.R. 13 Cal. 336 Sorolah Dossee v. Bhoobun Mohan Neoghy I.L.R. 15 Cal. 292 and Hemangini Dasi v. Kedar Nath Kundu Chowdhuri L.R. 16 I.A. 115. The result of these cases seems to be, so far as they bear upon the question now before us, that a Hindu widow having several sons is entitled to be maintained from the estate left by her husband so long as the sons remain undivided; and that if and when the sons come to a partition of the paternal estate, she is entitled for her life to a share equal to that of each of the sons; but that the share which she thus takes is not in right of her being a co-parcener, having any pre-existing interest in the estate, but in lieu of, or by way of provision for maintenance. If, therefore, it were necessary to decide in this case whether Saroda Sundari was entitled to a fourth share in the estate of Jugomohun, it would be necessary to consider whether there was a partition in law between the sons and grandson of Jugomohun, such as would entitle the widow, Saroda Sundari, to claim a share in her husband's estate. The Subordinate Judge does not seem to have addressed himself to this question, and we do not quite follow all the reasons upon which he held that Saroda Sundari was entitled to a share. But in the view that we take, and which we shall presently express, of the rights that the defendant has acquired, we do not think it is necessary to express any opinion on the question.

9. As regards the conveyance executed by Hurish Chunder, we are of opinion that the plaintiff acquired no title under it, Hurish Chunder having had already put in a disclaimer in the Comptroller-General's office upon receipt of a valuable consideration from Uma Churn and acquiescing in the duplicates being issued to him. This was long before Hurish Chunder sold to the plaintiff, and it is obvious that that sale could not give him, the plaintiff, any title as against. Uma Churn, or his assignee, Mr. Braunfeld.

10. Then, as regards the question, what is the title which Uma Churn acquired under his purchase from the defendants 1 and 2 in November 1885, the matter seems to stand thus:

11. The promissory notes, as already mentioned, stood in the name of Kudumbini, and the defendants 1 and 2 obtained letters of administration in respect thereto, and being administrators they had the power, with the consent of the Court, to dispose of them (Act V of 188i, Section 90). The consent of the Court was not, however, obtained to the sale which they made to Uma Churn; but this circumstance by itself would not make the sale void, as the defect of title has been cured by Act VI of 1889, Section 19, the operation of which section is retrospective, and there is no other fact that we know of in this case which would invalidate the sale. If the administrators have misapplied the estate of the deceased, or have by this transaction subjected it to loss or damage, they are liable to make good the loss or damage, (section 114, Act V of 1881), but there is no reason to hold that the sale in question is bad.

12. It has, however, been contended that the sale by the administrators was not qua administrators, but as heirs of Kudumbini, and therefore the sale does not bind Saroda Sundari or her assignee, the plaintiff. We are, however, of opinion that the fact that the conveyance does not describe the defendants 1 and 2 as administrators, but as heirs, does not affect the case, because either as administrators, or as heirs they were entitled to sell, though no doubt as heirs they could not sell anything more than their own shares. The purchase-money, however, came into their hands; and as administrators they would be bound to administer the same as part of the assets of the estate; but whether they do so or not, it does not affect the title of the purchaser. (See in this connection, West of England and South Wales District Bank v. Murch L.R. 23 Ch. D. 138 and Corser v. Cartwright L.R. 7 H.L. 731.

13. We hold, therefore, that Uma Churn acquired a good title under his purchase; and it follows, therefore, that he was entitled to sell the notes to Mr. Braunfeld. No doubt, before Mr. Braunfeld obtained his conveyance, the plaintiff gave him notice of his purchase, but this was after he (Mr. Braunfeld) had entered into a contract for the purchase with Uma Churn, and paid a portion of the purchase-money.

14. Upon these grounds we are of opinion that the plaintiff is not entitled to succeed in this case; the result being that the appeal will be dismissed with costs.